Friday, August 31, 2007

Hawaii Supreme Court Publishes Superferry Opinion

That Hawaii Supreme Court published a 104 page decision today that spells the end of the Hawaii Superferry. Basically, the court held that the Hawaii Superferry is not exempt from Hawaii's envrionmental laws and that it first must complete Hawaii's environmental review process.

Aside from what I wrote previously, here are additional observations based on the court's published decision:

HEPA Exemption Determinations. An agency considering whether a proposed action is exempt must make the following determinations: (1) whether the action being considered is part of a “group of actions” which must be “treated as a single action,” HAR § 11-200-7; (2) whether it falls within an exempt class of action, either under its own list or the Council’s list; (3) whether the exemption is inapplicable because of the cumulative impact of an action or its impact on a particularly sensitive environment; and (4) whether the proposed action will “probably have a minimal or no significant effect on the environment.” HAR § 11-200-2.

Judicial Review. In considering the legality of a HEPA exemption determination on judicial review, the court will inquire whether or not an agency has followed proper procedures or considered the appropriate factors in making its determination. This inquiry is a question of law, and will be reviewed de novo.

Standing. The Court remains permissive in granting standing to HEPA challengers. The Court’s conclusion is foreshadowed by its citation to “The Liberalized Law of Standing.” For environmental cases the Court opines that there will be “no requirement that [plaintiff’s] asserted injury be particular to the plaintiff, and the court will recognize harms to the plaintiff’s environmental interests as injuries that may provide the basis for standing.” In this case, the “injury in fact is due to the DOT’s decision to go forward with the harbor improvement and allow the Superferry project to operate . . . without conducting an EA.” The procedural injury is “based on the various interests Appellants have identified that are threatened due to the violation of their procedural rights under HEPA.

Holding. DOT did not consider whether its facilitation of the Superferry would probably have a minimal or no significant impact, both primary (physical harbor improvements) and secondary (impacts resulting from Superferry use of harbor improvements), on the environment in its exemption determination. Case reversed and remanded in favor of plaintiffs/appellants.

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